US v. Kenneth Hyatt

Filing 920091002

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8455 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KENNETH R. HYATT, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (7:02-cr-00013-F-2; 7:06-cv-00173-F) Submitted: August 10, 2009 Decided: October 2, 2009 Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant. Rudolf A. Renfer, Jr., Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth R. Hyatt seeks to appeal the district court's order dismissing as untimely his 28 U.S.C.A. 2255 (West Supp. 2009) motion. justice or The order is not appealable unless a circuit judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2) (2006); Miller-El For claims dismissed v. Cockrell, 537 U.S. 322, 336-38 (2003). on procedural grounds, this standard is satisfied by showing both that jurists of reason would find it debatable whether the motion states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). record and conclude that We have independently reviewed the Hyatt has not made the requisite showing. Accordingly, we deny a certificate of appealability We dispense with oral argument because and dismiss the appeal. the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2

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